Summary of NLRB Decisions for Week of April 17 - 21, 2023
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
Genpak, LLC (15-CA-237525; 372 NLRB No. 76) Hope Hull, AL, April 19, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(3) and (1) by discharging an employee. The Board found that the Respondent met its rebuttal burden under Wright Line by demonstrating that the employee violated the Respondent’s zero-tolerance Lockout/Tagout safety policy.
The Board, reversing the judge, concluded that the Respondent violated Section 8(a)(3) and (1) by disciplining an employee as the Respondent’s failed to demonstrate that it would have issued a final written warning to the employee even in absence of the employee’s protected activity.
Charge filed by Retail, Wholesale and Department Store Union, Mid-South Council. Administrative Law Judge Christine E. Dibble issued her decision on April 11. 2022. Chairman McFerran and Members Wilcox and Prouty participated in the decision.
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Noah’s Ark Processors, LLC d/b/a WR Reserve (14-CA-255658; 372 NLRB No. 80) Hastings, NE, April 20, 2023.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by bargaining with the Union in bad faith and by implementing its final offer in the absence of a valid impasse. In addition to traditional remedies for such a violation, the Board unanimously determined that a “broad” cease-and-desist order was warranted. A Board majority (Chairman McFerran and Member Prouty) further ordered: the addition of an Explanation of Rights to the remedial order, a bargaining schedule with written progress reports, reimbursement of the union’s bargaining expenses and earnings lost by individual employees while attending bargaining sessions, extended posting of the Notice and Explanation of Rights for one year, electronic distribution of the Notice and Explanation of Rights, mailing of the Notice and Explanation of Rights, reading of the Notice and Explanation of Rights in English and Spanish by the Respondent’s CEO or by a Board agent in the CEO’s presence, union presence at the Notice reading upon request, distribution of the Notice and Explanation of Rights to employees at the reading, and authorizing a Board agent to enter the Respondent’s facility for a period of one year at reasonable times for the purpose of determining whether the Respondent is in compliance with its posting and mailing requirements under the Board’s order. Member Kaplan concurred in part and dissented in part.
Charge filed by United Food and Commercial Workers Local Union No. 293. Administrative Law Judge Robert A. Ringler issued his decision on May 27, 2021. Chairman McFerran and Members Kaplan and Prouty participated.
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Paragon Systems, Inc. (05-CA-293052 and 05-CA-294712; 372 NLRB No. 79) Frederick, MD, April 21, 2023.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested relevant and necessary information, by failing and refusing to bargain with the Union by insisting, as a condition of bargaining for any collective-bargaining agreement, that the Union withdraw an unfair labor practice charge, and by failing and refusing to bargain with the Union for a successor collective-bargaining agreement.
Charges filed by United Government Security Officers of America International Union. Chairman McFerran and Members Kaplan and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
UPS Supply Chain Solutions, Inc. (32-RC-293756) Tracy, CA, April 20, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Exceptions Adopting the Hearing Officer’s Report and Recommendation Overruling Objections and Certification of Representative as it raised no substantial issues warranting review. Union— International Brotherhood of Teamsters, Local 439. Chairman McFerran and Members Kaplan and Wilcox participated.
Crystal Enterprises, Inc. (15-RC-303334) Eglin AFB, FL, April 21, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objection and Certification of Representative as it raised no substantial issues warranting review. Petitioner— Industrial, Technical & Professional Employees Union, Local 4873. Chairman McFerran and Members Kaplan and Wilcox participated.
C Cases
ExxonMobil Corporation, Beaumont Refinery (16-CA-276089, et al.) Beaumont, TX, April 19, 2023. The Board granted the General Counsel’s Request for Special Permission to Appeal the Administrative Law Judge’s ruling accepting a non-Board partial settlement of certain unfair labor practices alleged in the consolidated complaint. The Board granted the appeal on the merits, without prejudice to further settlement negotiations consistent with the order, finding that approval of the partial settlement agreement would not effectuate the purposes and policies of the Act. Although the Board agreed with the judge that some Independent Stave factors weighed in favor of approval, the Board found that the judge erred in failing to consider the settlement’s “Scope of the Agreement” provision, which on its face prohibited the General Counsel from using the evidence obtained in the investigation and prosecution of the settled allegations in the litigation of the remaining allegations. The Board found that this provision was contrary to precedent and, if enforced, would unreasonably restrict the General Counsel’s ability to litigate the unsettled charges in the consolidated complaint. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC. Chairman McFerran and Members Kaplan and Prouty participated.
Full-Fill Industries, LLC (25-CA-291427) Henning, IL, April 19, 2023. The Board denied the Respondent’s Motion to Dismiss the complaint, finding that the Respondent has failed to establish that the General Counsel should be precluded from litigating the complaint based on the rule established by Jefferson Chemical Company, 200 NLRB 992 (1972), and that the Respondent has not presented any other valid reason for dismissing the complaint. Charge filed by International Brotherhood of Electrical Workers, Local Union 538. Chairman McFerran and Members Kaplan and Wilcox participated.
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Appellate Court Decisions
Crozer-Chester Medical Center, Board Case No. 04-CA-172296 (reported at 371 NLRB No. 129) (3d Cir. decided April 20, 2023).
In an unpublished opinion, the Court, post-remand, enforced the Board’s supplemental order that issued against this non-profit entity that operates a system of hospitals and medical facilities in Pennsylvania, where employees at two of its hospitals are represented by the Pennsylvania Association of Staff Nurses and Allied Professionals. In doing so, the Court upheld the Board’s finding that Crozer violated Section 8(a)(5) and (1) by refusing to provide the Union with certain information relevant to its duty to bargain over the effects of its sale to another entity.
In 2015, after the Union learned that Crozer planned to sell the hospital system and determined that the sale would likely impact the employees’ working conditions, it requested a copy of the sales agreement so that it could bargain over its effects. At the time, Crozer acknowledged that portions of the sales agreement were relevant to bargaining, but refused to produce the agreement in its entirety, claiming that it contained irrelevant or confidential information. In its initial decision (366 NLRB No. 28), the Board (Members Pearce, McFerran, and Emanuel) found that Crozer’s refusal was unlawful, and (Member Emanuel, dissenting) directed Crozer to provide the Union with the entire sales agreement, including all schedules and attachments.
On review of the Board’s initial decision, the Court rejected Crozer’s claim that it had a confidentiality interest that barred it from providing the entire sales agreement to the Union. But the Court held that Crozer unlawfully failed to provide only portions of the sales agreement, and remanded the case to the Board for further consideration of the remedy. Crozer-Chester Med. Ctr. v. NLRB, 976 F.3d 276 (3d Cir. 2020).
On remand, the Board (Chairman McFerran and Member Prouty; Member Ring, dissenting) accepted the Court’s decision as law of the case and reassessed the record and specific evidence noted by the Court. The Board concluded that 11 of the agreement’s schedules and attachments were presumptively relevant to the Union’s bargaining duty, given that they pertained to benefits and other terms and conditions of employment, and that the Union sufficiently established that another 10 were relevant under the applicable liberal-discovery standard. Accordingly, the Board ordered that those 21 attachments to be provided to the Union.
Back on review, the Court dispensed with oral argument and upheld the Board’s determinations “essentially for the reasons stated in the Board’s opinion.” Noting that the relevancy standard is “undemanding,” and that the courts and the Board employ a “liberal and broad discovery-type standard,” which “requires only the probability that the desired information is relevant,” the Court found no reason to overturn the Board’s relevancy determinations.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Community Organized Relief Effort (31-CA-272228; JD-(SF)-09-23) West Los Angeles, CA. Administrative Law Judge Lisa D. Ross issued her decision on April 17, 2023. Charge filed by an individual.
Flow Service Partners Op-Co, LLC, d/b/a Perfection Heating, Air Conditioning, and Refrigeration, LLC (25-CA-292574 and 25-CA-293162; JD-27-23) Evansville, IN. Administrative Law Judge Charles J. Muhl issued his decision on April 18, 2023. Charges filed by Sheet Metal Workers, Air, Rail, and Transportation Workers Local Union 20 a/w International Association of Sheet Metal, Air, Rail, and Transportation Workers.
United Parcel Service, Inc. (31-CA-255584; JD(SF)-10-23) San Bernardino, CA. Administrative Law Judge Amita Baman Tracy issued her decision on April 19, 2023. Charge filed by Teamsters Local 63.
Catholic Health Initiatives Colorado, d/b/a Centura Health – St. Mary Corwin Medical Center (27-CA-273705, et al.; JD(SF)-11-23) Pueblo, CO. Administrative Law Judge Brian D. Gee issued his decision on April 20, 2023. Charges filed by Communications Workers of America, AFL-CIO.
Hispanic Society of America (02-CA-290042; JD(NY)-06-23) New York, NY. Administrative Law Judge Lauren Esposito issued her decision on April 21, 2023. Charge filed by Technical, Office and Professional Workers, Local 2110, UAW.
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